9911796707
TMI Blog2006 (12) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... sked the authority to issue "proper notice". The authority immediately reacted by issuing a letter dated November 12, 2002, appearing at page 27 of the paper book by clarifying that the said notice should be read as a notice under section 143(2) (ii). The assessee then contended that such notice was barred by limitation as the 12-month period was over by the time the second letter reached the assessee. There was correspondence exchanged between the assessee and the Assessing Officer. Ultimately, the Assessing Officer decided to proceed with the matter and asked the assessee to appear before him. The assessee then prayed for an adjournment on the ground of ill-health. Such letter of adjournment was sent on February 15, 2003. The Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved by and/or dissatisfied with the judgment and order of the learned single judge the assessee preferred the instant appeal. Mr. J. P. Kaithan, learned counsel appearing for the appellant before us has contended as follows: (i) The amendment of section 143(2) came up in June, 2002, and was very much in force when the original notice dated October 21, 2002, was issued. Hence, the learned judge erred in holding that the old law would apply. (ii) The original notice dated October 21, 2002, was a vague notice. This was objected to by the assessee. The assessee asked the authority to issue a "proper notice". Hence, the subsequent letter dated November 12, 2002, should be considered as an independent notice and the same was of no conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation was not available to the assessee and the learned judge rightly rejected so. Mr. Shome on the merits has also contended that the writ petitioner did not approach the learned single judge with clean hands. He initially objected to the notice on the plea that the amended provision was not mentioned. Such clarification was subsequently made. The assessee waived his objection by dealing with the issue on the merits and by submitting his objection as well as by asking for adjournment before the hearing officer on the ground of illness. In this regard the reference may be had to the letter dated February 15, 2003, wherein it would appear that the assessee himself wrote to the officer that he was arranging the documents in terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication was filed before the Tribunal where the following plea was taken: "That apart, it appears that your honours had a feeling as in the assessment year 1995-96 the hon'ble Tribunal had set aside the assessment for further hearing in this assessment year 2001-2002 also. But this is not the fact. The appeal in this year is against original order. Right from the beginning the issue of notice under section 143(2) without mentioning the clause had been disputed. The issue had also been raised in the grounds before your honours. The issue had not been adjudicated. Of course it would be fair to mention that the hon'ble Calcutta High Court had decided the issue against your appellant but the issue is pending before the Division Bench in appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Lordship that since the original notice dated October 21, 2002, was clarified subsequently by the letter dated November 12, 2002, the plea of limitation was not available to the assessee. The application made by the assessee before the Tribunal is pending. It is true that on grounds Nos. 2, 3 and 4 there was no specific discussion by the Tribunal. The Tribunal may dispose of the said application to the extent that whether such defect was a "curable defect" or not. In this regard we may refer to ground No.4 quoted. Mr. Khaitan, however, has contended that in case the Tribunal ultimately comes to a finding that such mistake was an incurable one by accepting ground No.4 quoted the assessee must be allowed to raise the plea of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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